Another round in lawsuit over judges and their party politics
by Brandt Williams, Minnesota Public Radio
October 20, 2004

The 8th Circuit Court of Appeals heard arguments Wednesday over the role party politics can play in judicial campaigns in Minnesota. Golden Valley attorney Greg Wersal and the Republican Party of Minnesota say current rules that restrict Minnesota judicial candidates from taking part in some party activities are unconstitutional.

St. Paul, Minn. —
Wersal and the Republican Party are asking the court to overturn Minnesota guidelines that forbid judicial candidates from seeking endorsements from political parties, attending political rallies and directly soliciting campaign funds. But the state attorney general's office says partisan elections for judges will destroy the impartiality of the bench.

The U.S. Supreme Court has already struck down a section of the state's Code of Judicial Conduct, that forbade candidates from speaking publicly about political and legal issues. So now, judicial candidates can state where they stand on the issues of the day, but cannot take the additional step of stating their party affiliation. The Supreme Court didn't rule on those issues and the other activities judicial candidates may engage in, so Wersal and the Republican Party took their case to the 8th Circuit.

Attorney William Mormon argued for Greg Wersal, a former judicial candidate who is responsible for getting the case in front of the Supreme Court two years ago. Mormon argued that Minnesota's current campaign rules favor incumbent judges.

"It is impossible to win an election against an incumbent if you're unable to conduct a campaign, unable to announce your views, unable to associate with groups that assist in your election, unable to raise funds by soliciting people to contribute to your campaign," Mormon said.

The discussion before the 13 judges often touched on how political party affiliation might hinder a judge's ability to rule on certain cases -- especially cases that deal with the political party that judge belongs to.

Mormon said the state would be within its bounds to disallow a judge to preside over a case like that, much in the same way an official who owned stock in a company would recuse himself from a case involving the company.

Mormon said judges already belong to, and are affiliated with, political parties. And he said the idea that a judge with a known political affiliation can't fairly try a case is "utterly absurd."

"It's absurd in reality because as everybody knows, every judge that's appointed to a judgeship in this state has some political connections," Mormon said.

But opponents of increasing political party involvement in judicial campaigns say they fear the public's perception of judicial impartiality will diminish. Counsel for the state attorney general's office argued that Minnesotans take pride in an impartial judiciary, and wouldn't welcome partisan elections.

George Soule is with the Minnesota Bar Association, which filed a friend-of-the-court brief siding with the attorney general's office. Soule said partisan judicial elections in other states like Illinois often lead to expensive and contentious campaigns.

"There are millions of dollars now being spent on one seat in southern Illinois, that the trial lawyers on one side are pouring a lot of money into one candidate, and the business interests on the other side are pouring a lot of money into another candidate," said Soule. "It's very public what's happening there, and I can't help but think that that's not a good thing for an objective and impartial judiciary in Illinois."

Just because judges can speak out on political and legal issues doesn't necessarily mean they will. Hennepin County Judge Kevin Burke is up for election this year. He's running unopposed. Burke said judges can run into problems if they speak out on certain issues -- like being tough on crime.

"That kind of thing can get you into a little bit of trouble," Burke said. "Because, what makes you think that the defense is going to actually appear in front of you then? You have a right to a notice to remove - the defendant says, 'Hey, you campaigned on doing me in. I'm not going to appear in front of you.'"

William Mormon said individuals who are in favor of the Wersal lawsuit are people who are concerned about "activist judges." Mormon says he has no problem with that. These days, those are people who are against gay marriage and legalized abortion. However, Mormon says the lawsuit has historical precedent. In the 19th century, Minnesotans chose to move from an appointed to an elected bench to be able to vote out pro-slavery judges.